Twice This Week, D.C. Court Finds that Texas Laws Discriminate

Twice this week, Texas Attorney General Greg Abbott has suffered huge losses in federal court over the Voting Rights Act. First, a federal appeals court in D.C. found that Texas’ redistricting plan wasn’t just discriminatory, but intentionally discriminatory toward minority voters. And then today, a three-judge panel from the same D.C. appeals court laid waste to the state’s stringent voter ID law. In a scathing 56-page opinion, the judges ruled that the Texas law requiring voters to have photo IDs at the polls has the effect of discriminating against minorities.

Texas has tried to defend these laws. Attorneys for the state presented evidence that the voter ID law wouldn’t roll back voting rights (the legal term is “retrogression”), but federal judges were underwhelmed: “Because all of Texas’s evidence on retrogression is some combination of invalid, irrelevant, and unreliable, we have little trouble concluding that Texas has failed to carry its burden.”

The court could’ve stopped there but the decision goes on to find actual harm to voters:

Simply put, many Hispanics and African Americans who voted in the last election will, because of the burdens imposed by SB 14, likely be unable to vote in the next election. This is retrogression.

Ah, but what of the oft-repeated assertion that minority voters without a photo ID still have a choice? That they can “choose” to get an ID and vote? Or the arguement—put forth often by the state’s Republican leaders—that the standard isn’t too high because you need a photo ID to rent a video or get on an airplane? The panel actually points to the decision in the redistricting case, where a different three-judge panel was unpersuaded by Texas’ “voter choice” argument.

Just as educational and economic conditions might affect whether minorities “choose” to vote, those conditions could also affect whether minorities “choose” to obtain photo ID. Poorer people, for example, may be disproportionately unable to pay the costs associated with obtaining SB 14-qualifying ID. Thus, cognizant of the decision of our sister court and fully persuaded by its reasoning, we decline Texas’s recycled invitation to collapse the entire retrogression analysis into a question of voter “choice.”

Indeed, the bare demographic facts cited in the panel’s voter ID decision ought to be an embarrassment to Abbott, et al.

“According to undisputed U.S. Census data, the poverty rate in Texas is 25.8% for Hispanics and 23.3% for African Americans, compared to just 8.8% for whites”

“Undisputed census data shows that in Texas, 13.1% of African Americans and 7.3% of Hispanics live in households without access to a motor vehicle, compared with only 3.8% of whites.”

The court used these indisputable data points to demonstrate the disparate impact that a photo ID requirement will have on Texans.

Look, in many respects the decision today only confirms the obvious: The suddenly in-vogue voter ID laws are not really about (virtually non-existent) voter fraud; they’re about making it harder for poor and minority voters to exercise their franchise. The architects of these laws are no dummies. They know that the instances of in-person voting fraud—the only voting fraud that an ID law protects against—are extremely rare. This was never really about fraud; it was about winning elections. This is about shaving off a percent here, a percent there by depressing turnout. This is about keeping the demographic hordes at bay just a little bit longer, keeping the GOP in power just a few more years.

Ultimately what stands in their way, perhaps more than anything, is Section 5 of the Voting Rights Act. Because of Texas’ history of racial discrimination, the state must get “pre-clearance” from the Department of Justice or a DC court before making changes to the voting system. Under Section 5, the state shoulders the burden proof; Texas must demonstrate that voting law change “does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color.” Section 5 is why Texas’ redistricting plan and voter ID law are failing.

No wonder, then, that Abbott’s immediate reaction to the decision today was to tweet that he was appealing to the U.S. Supreme Court to strike down Section 5 of the Voting Rights Act:

Forrest Wilder, a native of Wimberley, Texas, is associate editor of the Observer. Forrest specializes in environmental reporting and runs the “Forrest for the Trees” blog. Forrest has appeared on Democracy Now!, The Rachel Maddow Show and numerous NPR stations. His work has been mentioned by The New York Times, the Washington Post, the New Yorker, Time magazine and many other state and national publications. Other than filing voluminous open records requests, Forrest enjoys fishing, kayaking, gardening and beer-league softball. He holds a bachelor's degree in anthropology from the University of Texas at Austin.